XCHRX WOO CHIU LIN v. LEUNG CHI YING

HCMP 4493/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4493 OF 1999

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J U D G M E N T

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1. This is an appeal from an order of Master Lung made on 8 November 2000 ordering the proceedings herein to be continued as if begun by writ of summons.

2. By the Originating Summons, the Plaintiff seeks vacant possession of the property set out in the Originating Summons and payment of all monies due to the Plaintiff under a second legal charge dated 15 January 1999 made between the Plaintiff, as the lender, and the Defendant, as the mortgagor, whereby the property was charged to the Plaintiff to secure the re-payment of the sum of $100,000 together with interest on the sum.

3. A number of affirmations have been filed in the proceedings before Master Lung. Quite clearly, in my view, issues of fact have been raised. That being so, Master Lung considered that the proceedings should be continued as if the cause or matter had been begun by writ and gave directions for the filing of pleadings. He also ordered that the proceedings be transferred to the District Court because of the amount involved.

4. It seems to me, looking at the affidavit evidence filed by both sides, there are clearly issues of fact raised. The Defendant disputes that the second legal charge was interpreted to her by a solicitor or that she understood that she was in fact mortgaging the property to the Plaintiff. She also alleges that she was paying $5,000 a month for a certain period of time to the Plaintiff and it is arguable that this amounts to over 60% per annum of the loan. If so, then it will be caught by the provisions of s. 24 of the Money Lenders Ordinance (Cap 163). This provides that no agreement for the re-payment of any loan or for the payment of interest of any loan shall be enforceable in any case in which the effective rate of interest exceeds the rate specified in subsection (1), namely 60% per annum. That is but one of the issues raised. It is also a factual dispute as to whether interest was ever repaid by the Defendant to the Plaintiff. The Plaintiff says that she has never received any interest but the Defendant says that she did pay interest. These are clear issues of fact. That being so, it was, in my judgment, eminently sensible for Master Lung to have come to the view that the proceedings should be continued as if the cause or matter had been begun by writ. In view of the issues of fact involved this matter should not have proceeded by way of Originating Summons and Master Lung was correct to make the order that he did. The appeal is dismissed.